50-50 for a 1 yr & 3 yr old...

[rosegdrose]

It was filed on the 25th of October and denied on the 26th of October.

So when confronting my lawyer, should I just tell him that I want him to file for another emergency hearing? Based on the following,

1. the parents cannot agree to a parenting plan,
2. there is no available mediation for 3+ months,
3. the childrens health is at risk due to the smokers home, in which the father is living in, WITH an attached letter from our childrens Dr supporting the issue of their [children's] health.
maybe
4. the father has had a previous problem with drugs and alcohol, which is confirmed by a letter from the family therapist.

Anything else additional?

What if my lawyer says no?

How do I ask for an expedited hearing?

How do I ask the judge to remove himself for bias bc of abuse of discretion?

Thanks

k  

[socrateaser]

>It was filed on the 25th of October and denied on the 26th of
>October.

>So when confronting my lawyer, should I just tell him that I
>want him to file for another emergency hearing? Based on the
>following,
>
>1. the parents cannot agree to a parenting plan,
>2. there is no available mediation for 3+ months,
>3. the childrens health is at risk due to the smokers home, in
>which the father is living in, WITH an attached letter from
>our childrens Dr supporting the issue of their [children's]
>health.
>maybe
>4. the father has had a previous problem with drugs and
>alcohol, which is confirmed by a letter from the family
>therapist.
>
>Anything else additional?

I think concentrating on the unavailability of any possible resolution combind with the second hand smoke and a doctor's affidavit on the issue, should be enough, but you may have to file an emergency interlocutory appeal with the appellate court, on grounds of abuse of discretion, if the judge doesn't buy into your argument

>What if my lawyer says no?

You can fire him and hire someone else. And, you can complain to the state bar that he is not competently advancing your best interests with the court.

Ultimately, you have to balance finances, your relationship with the attorney, and your own interests, and it's not easy to do.

>
>How do I ask for an expedited hearing?

The attorney can go to the ex parte judge and allege irreparable harm from the cigarette smoke and dr's note. If he notifies opposing counsel of the intent to appear at an ex parte hearing, then opposing counsel should try to appear. If both counsel appear, you're having an expedited hearing, without asking for it.

>
>How do I ask the judge to remove himself for bias bc of abuse
>of discretion?

You don't, unless you want to lose every future motion with the court. You talk it over with your lawyer, and see whether this judge is the sort who will walk off from a case where a client genuinely believes that the judge is not being neutral.

Very delicate thing -- getting a judge to voluntarily step aside. Don't try it on your own.

[rosegdrose]

Thank you so much for all your help. I will keep you posted.

[rosegdrose]

LOL, sorry about that, for some reason I thought you were able to read the previsous motion, LOL. Anyway, I will talk with my lawyer this week.

The previous ordered stated that I filed for divorce on 10-09-2006. That the father has taken the children for extended periods of time and refuses to bring them back. That the father resides in a smokers home and both children suffer from asthma. That the father is refusing to take the child to school.

I also asked for a pick-up order to be placed so that my husband didn't just keep the kids anyway, which would be a civil matter and I would just end up back in court.

That was denied and referred to mediation.

Should I have my counselor write a letter stating that he has had previous alcohol and drug problems? However, I am sure that he has cleaned up his act because he knows that it could be used against him, so I don't want to look like I am trying to sabatage his reputation as a parent.

Thanks!

K

[socrateaser]

>Should I have my counselor write a letter stating that he has
>had previous alcohol and drug problems? However, I am sure
>that he has cleaned up his act because he knows that it could
>be used against him, so I don't want to look like I am trying
>to sabatage his reputation as a parent.

I thought you already had a report describing your spouse's substance abuse problems. If not, you could ask for a report from the counselor, but she may balk without the other parties' consent for release, absent a court order.

Based on your prior motion, this almost looks like an abuse of discretion by the court. How long ago was your motion denied?

[rosegdrose]

It was filed on the 25th of October and denied on the 26th of October.

So when confronting my lawyer, should I just tell him that I want him to file for another emergency hearing? Based on the following,

1. the parents cannot agree to a parenting plan,
2. there is no available mediation for 3+ months,
3. the childrens health is at risk due to the smokers home, in which the father is living in, WITH an attached letter from our childrens Dr supporting the issue of their [children's] health.
maybe
4. the father has had a previous problem with drugs and alcohol, which is confirmed by a letter from the family therapist.

Anything else additional?

What if my lawyer says no?

How do I ask for an expedited hearing?

How do I ask the judge to remove himself for bias bc of abuse of discretion?

Thanks

k  

[socrateaser]

>It was filed on the 25th of October and denied on the 26th of
>October.

>So when confronting my lawyer, should I just tell him that I
>want him to file for another emergency hearing? Based on the
>following,
>
>1. the parents cannot agree to a parenting plan,
>2. there is no available mediation for 3+ months,
>3. the childrens health is at risk due to the smokers home, in
>which the father is living in, WITH an attached letter from
>our childrens Dr supporting the issue of their [children's]
>health.
>maybe
>4. the father has had a previous problem with drugs and
>alcohol, which is confirmed by a letter from the family
>therapist.
>
>Anything else additional?

I think concentrating on the unavailability of any possible resolution combind with the second hand smoke and a doctor's affidavit on the issue, should be enough, but you may have to file an emergency interlocutory appeal with the appellate court, on grounds of abuse of discretion, if the judge doesn't buy into your argument

>What if my lawyer says no?

You can fire him and hire someone else. And, you can complain to the state bar that he is not competently advancing your best interests with the court.

Ultimately, you have to balance finances, your relationship with the attorney, and your own interests, and it's not easy to do.

>
>How do I ask for an expedited hearing?

The attorney can go to the ex parte judge and allege irreparable harm from the cigarette smoke and dr's note. If he notifies opposing counsel of the intent to appear at an ex parte hearing, then opposing counsel should try to appear. If both counsel appear, you're having an expedited hearing, without asking for it.

>
>How do I ask the judge to remove himself for bias bc of abuse
>of discretion?

You don't, unless you want to lose every future motion with the court. You talk it over with your lawyer, and see whether this judge is the sort who will walk off from a case where a client genuinely believes that the judge is not being neutral.

Very delicate thing -- getting a judge to voluntarily step aside. Don't try it on your own.

[rosegdrose]

Thank you so much for all your help. I will keep you posted.

[rosegdrose]

Hello..again,

Ok, so I talked with my current lawyer and told him that I want him to file for an expedited hearing on grounds that the mediation is over 3 months away. He said "we already did that, it got denied." He also said that the judge knows mediation is backed up. So basically he was somwhat curt with me...

I am thinking about getting a different lawyer and have consulted one already.

What kind of questions should I be asking the new lawyer?

New lawyer disagrees with my current lawyer saying that we should be able to get in front of the judge within 2 weeks...


Any thoughts or suggestions would be helpful. Thanks!

K

[socrateaser]

>New lawyer disagrees with my current lawyer saying that we
>should be able to get in front of the judge within 2 weeks...
>
>
>Any thoughts or suggestions would be helpful. Thanks!

You need to tell the new lawyer that you don't want to be led down the primrose path, and that you want to discuss and consent to any action or decision to not act, before it's taken.

Also, ask the attorney if he/she has had experience before this judge, and if so, whether this is the sort of thing that is likely to backfire.

I understand that your first attorney doesn't want to piss off the judge, so the real question is which attorney has more experience with this judge, as to the predisposition for annoyance.

I think your motion has some merit, but I can see both sides. The judge may just not think that a few months of second hand smoke is as irreparably dangerous as the other parent's loss of parenting time. That's not an unreasonable finding, unless you can show that the kids are actually suffering heatlh problems right now, via a physician's letter, or prescription(s) for respiratory medication, etc.

So, it's a close call, really, and I can't really give you a solid opinion on direction.